Claim number: CO/1988/2023
In the High Court of Justice
King’s Bench Division
9 November 2023
Mr David Pievsky KC sitting as a Deputy High Court Judge.
The King on the application of
AO by their Litigation Friend and mother SC
Independent review panel of XYZ Academy Trust
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant and the Acknowledgments of service filed by Interested Parties
ORDER by Mr David Pievsky KC sitting as a Deputy High Court Judge.
- The application for permission to apply for judicial review is granted.
- The hearing of the claim is expedited and shall be listed for hearing in the week commencing 18 December 2023, or as soon thereafter as the court can accommodate the hearing, with a time estimate of 1 day. If the parties disagree with this time estimate they shall provide a written time estimate within 7 days of service of this order.
- Pursuant to CPR 39.2(4) the Claimant’s identity, address, and other information which could lead to their identification must not be disclosed. The parties to this claim shall be anonymised as follows: the Claimant shall be referred to as “AO”, the Claimant’s mother and litigation friend “SC”, the Defendant “The Independent Review Panel of XYZ Academy Trust”, the First Interested Party “ABC School”, the Second Interested Party “XYZ Academy Trust”, and the Third Interested Party “A Local Authority”.
- Pursuant to CPR 5.4C, a person who is not a party to the proceedings may obtain a copy of a claim form, judgment or order from the court records only if the same has been anonymised and redacted in accordance with paragraph 3 of this Order. If a person who is not a party to the proceedings applies for permission to obtain a copy of any other document, such application shall be on at least 7 days’ notice to the Claimant’s solicitors. Any application to set aside the confidentiality provisions in this Order shall be made on at least 3 days’ notice to the Claimant’s solicitors.
- Whilst I agree with the Interested Parties’ general observation that the Defendant’s decision ought not to be construed as though it were the judgment of a Court or Tribunal, and must be read fairly, I also agree with the Claimant’s point that the Defendant was required to apply judicial review principles to the case before it. One of the complaints made was about discrimination, and so one of the issues to be determined was whether the exclusion decision had been justified and proportionate. It is arguable, in my judgment, that on a fair reading of the decision, and in particular the conclusion that “in this case… there was a legitimate purpose in permanent[ly] excluding [the Claimant] in order to protect others”, the panel may have conflated the issues of legitimate purpose with proportionality, and/or otherwise failed to direct themselves properly when considering the question of proportionality.
- It follows, in my view, that Ground 3 is arguable. I have hesitated about Grounds 1 and 2 which seem to me weaker, their primary focus being on an alleged failure to consider PSED arguments, which may not ultimately add anything substantial to the issue of justification / proportionality that is already in play. But given that I am granting permission, it would not be right to shut the Claimant out from maintaining Grounds 1 and 2, if so advised.
- I am satisfied that a measure of expedition is appropriate given that the education of a child is in issue. I have provided for a shortened timetable. If the parties consider that the time estimate for the hearing or any other case management direction needs to be modified, they should act promptly.
- The application pursuant to CPR 39.2(4) and 5.4C is in my view appropriate and proportionate, having regard to the principle of open justice, in light of the potential impact on the Claimant, a child, of the publication of identity and information about the Claimant which is on the Court file.
Case Management Directions
- The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within 21 days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR 54.8 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR 54.14.
- Any application by the Claimant to serve evidence in reply shall be filed and served within 7 days of the date on which the Defendant serves evidence pursuant to 1(b) above.
- The parties shall agree the contents of the hearing bundle and must file it with the Court not less than 2 weeks before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties shall, if requested by the Court lodge 2 hard-copy versions of the hearing bundle.
- The Claimant must file and serve a Skeleton Argument not less than 7 days before the date of the hearing of the judicial review.
- The Defendant and any Interested Party must file and serve a Skeleton Argument not less than 3 days before the date of the hearing of the judicial review.
- The parties shall agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared in accordance with the Guidance on the Administrative Court website. The parties shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic version of the bundle and if requested, the hard copy version of the bundle, shall be lodged with the Court not less than 2 days before the date of the hearing of the judicial review.